Migration Amendment (Strengthening Biometrics Integrity) Bill 2015 - Second Reading


Senator IAN MACDONALD (Queensland) (17:35): The Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, as Senator Bilyk has just indicated, is an important bill relating to biometrics and related privacy aspects. I speak because I have an interest in it and also because I was Chairman of the Senate Legal and Constitutional Affairs Legislation Committee that held hearings in relation to this bill. I note with interest the matters that Senator Bilyk has raised and I will perhaps come back to those later.

By way of explanation, biometrics are an important integrity measure that contributes significantly to protecting Australia's border and preventing the entry of persons who may threaten the Australian community. Once anchored to a person's biographic information, such as name, nationality and date of birth, a biometric adds significantly to the department's capacity to verify that a person is who they claim to be and links an individual to security, law enforcement and Immigration information. The collection of biometric information in the migration context in Australia has been increased several times in the last decade and this was noted in the explanatory memorandum.

The Department of Immigration and Border Protection has a biometric program that has been progressively expanded over time, commencing in 2006 with collecting facial images and fingerprints of illegal foreign fishers through to 2010 when the department commenced collecting facial images and fingerprints from offshore visa applicants in certain higher-risk locations and onshore protection claimants. In 2012 the department also started collecting facial images and fingerprints from noncitizens refused entry at Australia's international airports.

That accuracy and fidelity of biometric data is a key issue in the context of using biometrics to positively identify individuals. The use of biometric identifiers does not provide an absolute insurance of the identity of the individual. As such, biometrics has been described as a probabilistic science, and I think that evidence was given to the committee. A representative of the Biometrics Institute told the committee that, generally, biometrics are around 98 per cent to 99 per cent accurate at the present time; however, there are particular issues relating to the accuracy over time of biometric information obtained from minors. The minister had addressed this in his second reading speech, where he said, 'Biometrics are more accurate than document based checks of biographic detail, such as name, date of birth and nationality because they are relatively stable over time and are significantly more difficult to forge.' In his second reading speech, the minister said that the bill would strengthen security at Australia's borders. The minister said:

The amendments to be made by this bill support changes introduced last year by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014. The Foreign fighters act, among other things, addressed the emerging threat of Australians seeking to travel overseas to fight with terrorist organisations. Importantly in the context of this bill, it also enhanced the capability of the Department of Immigration and Border Protection to identify persons seeking to enter and depart Australia, and noncitizens who remain in Australia.

… … …

Recent terrorism related events in Australia and globally serve to remind us that the threat of a domestic terrorist attack remains real. This bill further strengthens Australia's border protection measures by enhancing the capability of the department to identify persons seeking either to enter or depart Australia, and noncitizens who remain in Australia.

The committee looked very carefully at this bill. It consisted of several introductory clauses and one schedule containing amendments to the Migration Act. The explanatory memorandum stated that the bill seeks to amend the Migration Act in order to implement a number of reforms which will consolidate and simplify the provisions relating to the collection of personal identifiers. Put simply, that means that what this bill was doing was providing the officials, those charged with the protection of our borders, with the ability to better work out who is who, what is what and are people who they claim they are as they try to enter or even leave Australia.

The amendments to the Migration Act to be made by this bill expand existing personal identifier collection capability and provide for new capabilities which will increase the integrity of identity, security, law enforcement and immigration checks of people seeking to enter and depart Australia and, as I said, for noncitizens who remain in Australia. Specifically, the explanatory memorandum stated that the proposed amendments would streamline seven existing personal identifier collection powers into a broad discretionary power to collect one or more personal identifiers from noncitizens and citizens at the border. That obviously is a good thing for government and government administration to be able to streamline seven existing powers into one broader power that could be used in a discretionary way to cover all of those and other situations.

The explanatory memorandum also said that these amendments would provide flexibility on the types of personal identifiers that may be required, the circumstances in which they may be collected and the places where they may be collected. It also indicated in the explanatory memorandum that the bill would enable personal identifiers to be provided either by way of an identification interest or another specified way by the minister or an officer such as a live scan of fingerprints on handheld devices. It would also enable personal identifiers to be required by the minister or an officer either orally or in writing or through an automated system and allow for existing deemed receipt provisions in the Migration Act to apply in relation to requests in writing.

Further, it provided that it would enable personal identifiers to be collected from minors and incapable persons for the purpose of the Migration Act and the regulations under the new broad power without the need to obtain consent or require the presence of a parent, guardian or independent person during the collection of personal identifiers. That was an issue which did attract quite some comment from those who made submissions to the committee for its hearing into this bill and to a number who also gave evidence to the committee.

Finally, the explanatory memorandum showed that this bill would omit certain provisions which are unused and no longer necessary, and that is part of this government's ongoing goal—to get rid of regulations and legislation that are no longer necessary but simply clutter up the statute books.

As I said, section 261AL of the Migration Act states that individuals under the age of 15:

… must not be required under this Act to provide a personal identifier other than a personal identifier consisting of:

(a) a measurement of the person's height and weight; or

(b) the person's photograph or other image of the person's face and shoulders.

Item 41 of schedule 1 of this bill would alter this arrangement by amending that section. Under the proposed changes, non-citizen minors under the age of 15 in immigration detention will still only be required to provide height and weight measurements or photographs, but for minors under the age of 15 any personal identifiers available under the Migration Act would be able to be required.

The bill also proposes to alter the requirement in relation to the consent and presence of a parent or independent person for the collection of personal identifiers from a minor. Section 49 of schedule 1 would remove the requirement for the consent of a parent, guardian or independent person in order for a non-citizen minor to provide a personal identifier in limited circumstances in which this is currently required.

Item 50 of schedule 1 would remove the requirement for a minor, regardless of whether they are a citizen, to have a parent guardian or independent person present while a personal identifier is being provided, except in cases of minors who are in immigration detention.

The committee had a look at the explanatory memorandum in relation to these proposed changes, and saw that the explanatory memorandum provided this rationale:

The amendments contained in items 49 and 50 are primarily a child protection measure aimed at preventing child trafficking and/or smuggling. In addition, the amendments will ensure that the power to collect personal identifiers is consistent for all persons, and to provide flexibility for officers to respond effectively and quickly to emergent risks. The amendments will address situations where a parent, guardian or independent person may seek to frustrate the collection of personal identifiers by way of an identification test by leaving a room where an identification test is to take place.

Again, I repeat that the rationale for this was related to and brought about by some child trafficking experience that the department had, and actual child smuggling, where simple refusal to consent by someone apparently in charge of that child meant that the child could not be properly identified. Hopefully this bill will address those issues.

The explanatory memorandum further states:

The power to require a minor to provide a personal identifier without the consent or the presence of a parent, guardian or independent person, is expected only to be utilised in limited circumstances.

It notes that the department informed the committee that, currently, the consent of a parent, guardian or independent person is not required when collecting personal identifiers from any minor at Australia's border at arrival or departure or in transit from port to port. The consent of the parent or guardian or independent person of a non-citizen is required in some other prescribed circumstances. There was some evidence given by the department as to where and how that would happen.

There was some concern, which my colleague Senator Bilyk mentioned, about some privacy issues. After hearing all the evidence and reading the submissions, it was the committee's view that the collection of biometric information in the form of personal identifiers is an important tool in maintaining the integrity of Australia's borders and strengthening the ability of immigration officials to conduct identity and security checks on individuals.

Overall, the committee was supportive of the broad intent of the bill to simplify and streamline the provisions of the Migration Act dealing with the collection of personal identifiers. The committee, however, did make several specific comments in relation the issues raised during the inquiry hearing. They are all set out quite clearly in the committee's report on this bill, which has been tabled in the parliament.

I mention again, as did my colleague Senator Bilyk, the issue of privacy matters. The committee considered that biometric data is sensitive and personal information and that as such its collection storage and retention must only be conducted in such a way as to minimise the impact on the privacy of individuals. The department actually assured the committee that it complies with the requirements of the Privacy Act and the Archives Act in relation to storage and retention of biometric information, in addition to requirements in relation to these issues in the Migration Act itself. Further, the committee was pleased that the Privacy Commissioner is currently conducting a broad privacy assessment in relation to the overall arrangements for collection, storage, sharing and use of biometric data, which was to be finalised by the end of June. That issue did come up on just how this information was going to be used.

The committee hoped that the issues raised by the Privacy Commissioner would be considered by the government and that any required changes to the current operating procedures and requirements would be implemented, including further legislative amendments, if necessary. In relation to the privacy impact statement conducted by the department in relation to the specific measures contained in the bill, the committee noted that the department's assurance that the privacy impact assessment would be provided to the Privacy Commissioner by May at the latest, so that the Privacy Commissioner could have the benefit of that statement.

In order to allay any privacy concerns in relation to the bill, and further inform debate in the Senate, the committee, while recommending that the bill be passed, recommended that the privacy impact assessment conducted in relation to the bill be released publicly prior to the Senate's consideration of the bill. I understand that that has happened.

The committee also recommended that consideration be given to ensuring that protections in line with those found in sections 258E and 258F of the Migration Act 1958 apply to any means of collecting personal identifiers under proposed new paragraph 257A(5)(b) of the bill. Subject to those two qualifications, the committee recommended that the bill be passed. I understand—and I am not sure if this has yet been flagged by the minister, and I do not want to steal the minister's thunder if it has not—that the government has noted the concerns raised by the Senate committee and will be introducing an amendment that will address the concerns the committee had. I think they are the concerns that Senator Bilyk also raised and about which I suspect the Labor Party, if they have not done so already, were going to provide an amendment. But I am pleased to say that the government will be moving an amendment which addresses the concerns of the committee.

I conclude by again thanking all those people who made submissions to the Senate Legal and Constitutional Affairs Legislation Committee and all those who gave evidence to the committee—their evidence was very helpful to the committee. Can I thank, as always, the excellent committee staff, led by Sophie Dunstone, who did a wonderful job in this inquiry, as they do with every inquiry and every aspect of the committee's work. Now that the Senate's concern has been identified and accepted by the government and addressed in the form of an amendment, I am pleased to be able to support this motion. Again, it shows that the Senate committee system—properly run, properly managed—can provide a real benefit, often in a non-partisan way, to improve government legislation and address some perhaps at times unintended consequences. I support the bill.

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